United States District Court, D. New Mexico
ORDER AWARDING ATTORNEY FEES UNDER EAJA
MATTER is before the Court on Plaintiff's Motion for
Attorney Fees and Costs Pursuant to the Equal Access to
Justice Act (EAJA), with Supporting Memorandum (Doc.
22), filed on September 1, 2017. Defendant opposes an
award of EAJA fees and argues that the Acting
Commissioner's position was substantially justified.
Doc. 23 at 2. Having reviewed the motion and
exhibits, briefs submitted by the parties, and relevant law,
the Court finds an award of fees in the amount requested is
reasonable in this case.
initiated this case seeking remand of the Commissioner's
denial of her application for social security benefits
arguing, among other things, that the Administrative Law
Judge (ALJ) committed reversible error in her weighing of
Plaintiff's treating counselor's opinions (Doc.
15 at 5) and by failing “to reconcile an
inconsistency in the VE testimony with information in the
Dictionary of Occupational Titles, ” (id. at
21). This Court agreed, finding “that this matter
should be remanded for reevaluation of the weight to be
afforded to the opinion of [Plaintiff's] treating
counselor, Ms. Coker, and of the jobs that are available to
her given her RFC.” Doc. 20 at 20.
now seeks attorney fees under the Equal Access to Justice Act
(EAJA). “Under EAJA, a fee award is required if: (1)
plaintiff is a ‘prevailing party'; (2) the position
of the United States was not ‘substantially
justified'; and (3) there are no special circumstances
that make an award of fees unjust.” Hackett v.
Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quoting
28 U.S.C. § 241(d)(1)(A)). The parties here disagree on
the second factor: whether the position of the Acting
Commissioner was “substantially justified.”
test for substantial justification in this circuit is one of
reasonableness in law and fact.” Gilbert v.
Shalala, 45 F.3d 1391, 1394 (10th Cir 1995) (citing
Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir.
1992)). The Commissioner bears the burden to establish that
her position was substantially justified, both on appeal to
the district court and during the underlying administrative
proceedings. Hackett, 475 F.3d at 1172; see also
Tomlinson v. Colvin, CIV-15-699-STE, 2016 WL 5316740, at
*1 (W.D. Okla. Sept. 22, 2016). “Therefore, fees should
generally be awarded where the agency's underlying action
was unreasonable even if the government advanced a reasonable
litigation position.” Tomlinson, 2016 WL
5316740, at *1 (quoting Hackett, 475 F.3d at 1174
(internal quotation omitted)).
offered three reasons for discounting the opinions of Ms.
Coker: (1) that she was “not an acceptable medical
source under the regulations”; (2) that “although
the claimant was in therapy sessions with this provider, no
mental status examinations were performed”; and (3)
that Plaintiff's level of daily activities were
“highly inconsistent with Ms. Coker's imposed
limitations.” Doc. 20 at 8 (citing AR
at 19). After closely examining each of the three reasons
given by the ALJ for discounting the opinions of Ms. Coker,
the Court determined that she committed legal error. Doc.
20 at 10. The Court now reviews both the ALJ's
decision as well as the Defendant's litigation position
before this Court for substantial justification.
this Court explained that Ms. Coker's status as a
non-acceptable medical source or “other source, ”
though relevant in some circumstances, was not a
“legally sound” reason to reject her findings as
to impairment severity and functional effects. Id.
at 10-11. Defendant now submits that the ALJ
“reasonably noted that Ms. Coker was a nonacceptable
medical source.” Doc. 23 at 6. While it may
have been reasonable for the ALJ to note Ms.
Coker's status as a nonacceptable medical source, the
Court finds that it was not reasonable for her to
rely on this status as a basis for rejecting her opinions.
See AR at 19 (ALJ explaining that she gave
“little weight to the opinion of Ms. Coker, as she is
not an acceptable medical source under the
Regulations”). Indeed, the ALJ ran afoul of Social
Security Ruling 06-03p when she offered this particular
reason, apart from any application of the Watkins
deference factors,  in support of her rejection of the
opinions of Ms. Coker. See SSR 06-03p, 2006 WL
2329939 at *3. The Court finds no reasonable basis for such
legal error, or for Defendant's litigation position
arguing that reliance on this reason did not constitute legal
the Court previously found that the absence of formal mental
status examinations in Ms. Coker's records was an
insufficient reason for the ALJ to discount her opinion.
Doc. 20 at 12. In response to Plaintiff's Motion
for EAJA fees, Defendant now contends that it was reasonable
for the ALJ to justify the weight she gave Ms. Coker's
opinions by noting that her records did not contain formal
mental status examinations, which, Defendant suggests, amount
to a type of “clinical findings.” Doc.
23 at 4. As Defendant points out, 20 C.F.R. §
404.1527(c)(3) requires that ALJs consider the “medical
signs and laboratory findings” that support an opinion.
See Doc. 23 at 4. Conceding that there is no
specific requirement that a counselor conduct a mental status
examination, Defendant maintains that it was nevertheless
reasonable for the ALJ to rely upon the absence of such an
examination in discounting Ms. Coker's opinion.
Id. (citing Frey v. Bowen, 816 F.2d 508,
513 (10th Cir. 1987) for the proposition that a treating
physician's report may be rejected if unsupported by
in contrast, argues that Ms. Coker did make
objective clinical findings, including the observation of
symptoms of fearfulness, anxiety, distress, and tearfulness.
Doc. 24 at 3 (referencing AR at 584-87,
594-96). As previously noted by this Court, in Schwartz
v. Barnhart, 70 F. App'x 512, 517-18 (10th Cir.
2003) the Tenth Circuit rejected the notion that there is a
“‘dipstick' test for disabling depression,
” reversing an ALJ who discounted a treating
psychologist's opinion for failure to perform a
“thorough mental status exam.” Doc. 20
at 12. Ultimately, where many of the findings in Ms.
Coker's records mirror the type of information obtained
through a formal mental status examination, it was
unreasonable for the ALJ to discount Ms. Coker's opinions
based upon the absence of such examinations. Likewise, the
position taken by Defendant on this issue was not
characterizing the daily activities described by Plaintiff in
her Function Report as “unquestionably qualified,
” the Court explained that it was “difficult to
reconcile the contents of [the] function report with the
ALJ's description of Plaintiff's daily
activities.” Id. at 15. In the Court's
view, the ALJ's third reason for discounting Ms.
Coker's opinions was also flawed. Id. Defendant
now posits that its position and that of the ALJ - that
Plaintiff's description of her daily activities stood in
contrast to the extreme functional limitations found by Ms.
Coker - had a reasonable factual and legal basis. Doc.
23 (citing Castellano v. Sec'y of Health &
Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
While the extent of a plaintiff's daily activities may be
a reason for discounting or rejecting a treating source's
opinion in some cases, here it was unreasonable for the ALJ
to omit the significant qualifications offered by Plaintiff
as to those activities. The ALJ, and Defendant in turn,
relied upon mischaracterizations of Plaintiff's Function
Report to inaccurately portray her life as robust and
virtually unaffected by fibromyalgia symptoms. As such, their
positions were not reasonable in fact.
passed upon the reasonableness of each of the three bases for
discounting the opinions of Ms. Coker, the Court finds that
Defendant has not met its burden to show that its position
and that of the ALJ was substantially justified as to the
treatment of these opinions.
Court also determined in its previous opinion that the ALJ
failed to elicit a reasonable explanation for an apparent
conflict between the jobs that the Vocational Expert
identified and Plaintiff's Residual Functional Capacity.
Doc. 20 at 15-20. Defendant offers extensive
argument supporting its position that both it and the ALJ
were substantially justified in their failure to identify and
resolve an apparent conflict. See Doc. 23 at 5-11.
Indeed, Defendant references the opinions of various district
courts, which it represents have “adopted the
Commissioner's reasoning following the Tenth
Circuit's reassessment of GED reasoning levels in
Mounts and Anderson.” Id. at
10. However, because this Court finds that Defendant's
position regarding the treatment of Ms. Coker's opinions
was not substantially justified, it becomes unnecessary to
evaluate the reasonableness of its position as to this second
issue. In other words, the Court's finding of no
substantial justification as to one issue on which remand was
required entitles Plaintiff's counsel to EAJA fees.
See Comm'r, INS v. Jean, 496 U.S. 154, 161-62
(1990) (reasoning that “EAJA . . . favors treating a
case as an inclusive whole, rather than as atomized
line-items”); Hackett v. Barnhart, 475 F.3d
1166, 1173 n.1 (10th Cir. 2007) (rejecting the notion that
EAJA fees can be denied because the government prevailed on a
majority of issues).
addition to Plaintiff's request for attorney fees, she
also seeks reimbursement for her $400.00 filing fee, as well
as for certified mailing for service of process in the amount
of $20.04. Doc. 22 at 2. While filing fees are
recoverable, the Tenth Circuit has expressly held that
postage fees are not. Weakley v. Bowen, 803 F.2d
575, 580 (10th Cir. 1986) (“Costs for travel expenses
and postage fees are not authorized [under EAJA].”);
see also Rodriguez v. Berryhill, CIV 15-0985 WPL,
2017 WL 3278944, at *3 (D.N.M. Aug. 1, 2017). The Court feels
compelled to note, however, that exclusion of recovery
postage fees, especially when necessary to accomplish
service, seems contrary to the spirit of the EAJA. As
discussed by another court in this circuit,
The Weakley court and the cases it relies on read
“other expenses” out of the statutory definition.
28 U.S.C. § 2412(d)(2)(A). This court cannot believe
Congress intended the definitional section to be read
exclusively rather than inclusively. In four other circuits,
plaintiff's delivery and travel costs would be included
within “other expenses.”. . . While this court is
bound to follow the law of this circuit as set out in
Weakley, this court finds that task contrary to the
letter and purpose of the statute.
Robinson v. Sullivan, 719 F.Supp. 1012, 1014 (D.
Kan. 1989) (citations omitted); seealso
N.L.R.B. v. Pueblo of San Juan,305 F.Supp.2d 1229, 1237
(D.N.M. 2003) (District Judge Martha Vazquez observing that
Weakley's “narrow reading of the statute
also would contravene the purpose of the EAJA to make
competent legal representation available to parties in
litigation against the government.”). Nevertheless,
like the judge in the Robinson case, I am
constrained by ...